Florida Senate - 2023                             CS for SB 1342
       
       
        
       By the Committee on Criminal Justice; and Senators Martin and
       Book
       
       
       
       
       591-02795-23                                          20231342c1
    1                        A bill to be entitled                      
    2         An act relating to capital sexual battery; amending s.
    3         794.011, F.S.; revising how certain capital felonies
    4         are punished; requiring that specified procedures be
    5         followed to determine a sentence of death or life
    6         imprisonment without the possibility of parole in
    7         specified capital felony cases; requiring a prosecutor
    8         to give certain notice if he or she intends to seek
    9         the death penalty; providing notice requirements;
   10         creating s. 921.1425, F.S.; providing legislative
   11         findings and intent; requiring a court to conduct a
   12         separate sentencing proceeding to determine whether a
   13         defendant should be sentenced to death or life
   14         imprisonment without the possibility of parole upon
   15         the defendant’s conviction or adjudication of guilt
   16         for a capital felony; providing proceeding
   17         requirements; authorizing the presentation of certain
   18         evidence during such proceedings; requiring a jury to
   19         make specified determinations, findings, and
   20         recommendations; requiring a recommendation to the
   21         court of a sentence of death if at least eight jurors
   22         determine that the defendant should be sentenced to
   23         death; requiring a recommendation to the court of a
   24         sentence of life imprisonment without the possibility
   25         of parole if fewer than eight jurors determine that
   26         the defendant should be sentenced to death; requiring
   27         the court to impose the jury’s recommended sentence if
   28         the recommendation is for a sentence of life
   29         imprisonment without the possibility of parole;
   30         authorizing the court to impose a sentence of life
   31         imprisonment without the possibility of parole or a
   32         sentence of death if the recommended sentence is for
   33         death; authorizing the court to impose a sentence of
   34         death only if the jury unanimously finds at least two
   35         aggravating factors beyond a reasonable doubt;
   36         requiring a court to enter a written order addressing
   37         specified information; specifying that a judgment of
   38         conviction and sentence of death is subject to
   39         automatic review by the Florida Supreme Court;
   40         specifying aggravating factors; specifying mitigating
   41         circumstances; authorizing the prosecution to
   42         introduce and argue victim impact evidence to the
   43         jury; providing construction; providing applicability;
   44         amending s. 921.141, F.S.; conforming a provision to
   45         changes made by the act; providing an effective date.
   46          
   47  Be It Enacted by the Legislature of the State of Florida:
   48  
   49         Section 1. Paragraph (a) of subsection (2) of section
   50  794.011, Florida Statutes, is amended, and paragraph (c) of
   51  subsection (8) of that section is republished, to read:
   52         794.011 Sexual battery.—
   53         (2)(a) A person 18 years of age or older who commits sexual
   54  battery upon, or in an attempt to commit sexual battery injures
   55  the sexual organs of, a person less than 12 years of age commits
   56  a capital felony, punishable as provided in ss. 775.082 and
   57  921.1425. In all capital felony cases under this section, the
   58  procedure set forth in s. 921.1425 must be followed in order to
   59  determine a sentence of death or life imprisonment without the
   60  possibility of parole. If the prosecutor intends to seek the
   61  death penalty, the prosecutor must give notice to the defendant
   62  and file the notice with the court within 45 days after
   63  arraignment. The notice must contain a list of the aggravating
   64  factors the state intends to prove and has reason to believe it
   65  can prove beyond a reasonable doubt. The court may allow the
   66  prosecutor to amend the notice upon a showing of good cause ss.
   67  775.082 and 921.141.
   68         (8) Without regard to the willingness or consent of the
   69  victim, which is not a defense to prosecution under this
   70  subsection, a person who is in a position of familial or
   71  custodial authority to a person less than 18 years of age and
   72  who:
   73         (c) Engages in any act with that person while the person is
   74  less than 12 years of age which constitutes sexual battery, or
   75  in an attempt to commit sexual battery injures the sexual organs
   76  of such person commits a capital or life felony, punishable
   77  pursuant to subsection (2).
   78         Section 2. Section 921.1425, Florida Statutes, is created
   79  to read:
   80         921.1425 Sentence of death or life imprisonment for capital
   81  sexual battery; further proceedings to determine sentence.—
   82         (1)LEGISLATIVE FINDINGS AND INTENT.—
   83         (a)The Legislature finds that a person who commits a
   84  sexual battery upon, or in an attempt to commit sexual battery
   85  injures the sexual organs of, a person less than 12 years of age
   86  carries a great risk of death and danger to vulnerable members
   87  of this state. Such crimes destroy the innocence of a young
   88  child and violate all standards of decency held by civilized
   89  society. The Legislature further finds that Buford v. State of
   90  Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and
   91  that Kennedy v. Louisiana, 554 U.S. 407, (2008), was wrongly
   92  decided, and that such cases are an egregious infringement of
   93  the states’ power to punish the most heinous of crimes.
   94         (b)It is the intent of the Legislature that the procedure
   95  set forth in this section shall be followed, and a prosecutor
   96  must file a notice, as provided in s. 794.011(2)(a), if he or
   97  she intends to seek the death penalty.
   98         (2) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.—Upon
   99  conviction or adjudication of guilt of a defendant of a capital
  100  felony under s. 794.011, the court must conduct a separate
  101  sentencing proceeding to determine whether the defendant should
  102  be sentenced to death or life imprisonment as authorized by s.
  103  775.082. The proceeding must be conducted by the trial judge
  104  before the trial jury as soon as practicable. If, through
  105  impossibility or inability, the trial jury is unable to
  106  reconvene for a hearing on the issue of penalty, having
  107  determined the guilt of the accused, the trial judge may summon
  108  a special juror or jurors as provided in chapter 913 to
  109  determine the issue of the imposition of the penalty. If the
  110  trial jury has been waived, or if the defendant pleads guilty,
  111  the sentencing proceeding shall be conducted before a jury
  112  impaneled for that purpose, unless waived by the defendant. In
  113  the proceeding, evidence may be presented as to any matter that
  114  the court deems relevant to the nature of the crime and the
  115  character of the defendant and must include matters relating to
  116  any of the aggravating factors enumerated in subsection (7) and
  117  for which notice has been provided pursuant to s. 794.011(2)(a)
  118  or relating to any of the mitigating circumstances enumerated in
  119  subsection (8). Any such evidence that the court deems to have
  120  probative value may be received, regardless of its admissibility
  121  under the exclusionary rules of evidence, provided the defendant
  122  is accorded a fair opportunity to rebut any hearsay statements.
  123  However, this subsection may not be construed to authorize the
  124  introduction of any evidence secured in violation of the United
  125  States Constitution or the State Constitution. The state and the
  126  defendant or the defendant’s counsel must be permitted to
  127  present arguments for or against a sentence of death.
  128         (3) FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.—This
  129  subsection applies only if the defendant has not waived his or
  130  her right to a sentencing proceeding by a jury.
  131         (a) After hearing all of the evidence presented regarding
  132  aggravating factors and mitigating circumstances, the jury must
  133  deliberate and determine if the state has proven, beyond a
  134  reasonable doubt, the existence of at least two aggravating
  135  factors set forth in subsection (7).
  136         (b) The jury must return findings identifying each
  137  aggravating factor found to exist. A finding that two
  138  aggravating factors exist must be unanimous. If the jury:
  139         1. Does not unanimously find at least two aggravating
  140  factors, the defendant is ineligible for a sentence of death.
  141         2. Unanimously finds at least two aggravating factors, the
  142  defendant is eligible for a sentence of death and the jury must
  143  make a recommendation to the court as to whether the defendant
  144  must be sentenced to life imprisonment without the possibility
  145  of parole or to death. The recommendation must be based on a
  146  weighing of all of the following:
  147         a. Whether sufficient aggravating factors exist.
  148         b. Whether aggravating factors exist which outweigh the
  149  mitigating circumstances found to exist.
  150         c. Based on the considerations in sub-subparagraphs a. and
  151  b., whether the defendant should be sentenced to life
  152  imprisonment without the possibility of parole or to death.
  153         (c) If at least eight jurors determine that the defendant
  154  should be sentenced to death, the jury’s recommendation to the
  155  court must be a sentence of death. If fewer than eight jurors
  156  determine that the defendant should be sentenced to death, the
  157  jury’s recommendation to the court must be a sentence of life
  158  imprisonment without the possibility of parole.
  159         (4) IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH.—
  160         (a) If the jury has recommended a sentence of:
  161         1. Life imprisonment without the possibility of parole, the
  162  court must impose the recommended sentence of life imprisonment
  163  without the possibility of parole.
  164         2. Death, the court, after considering each aggravating
  165  factor found by the jury and all mitigating circumstances, may
  166  impose a sentence of life imprisonment without the possibility
  167  of parole or a sentence of death. The court may consider only an
  168  aggravating factor that was unanimously found to exist by the
  169  jury. The court may impose a sentence of death only if the jury
  170  unanimously finds at least two aggravating factors beyond a
  171  reasonable doubt.
  172         (b) If the defendant waives his or her right to a
  173  sentencing proceeding by a jury, the court, after considering
  174  all aggravating factors and mitigating circumstances, may impose
  175  a sentence of life imprisonment without the possibility of
  176  parole or a sentence of death. The court may impose a sentence
  177  of death only if the court finds that at least two aggravating
  178  factors have been proven to exist beyond a reasonable doubt.
  179         (5) ORDER OF THE COURT IN SUPPORT OF SENTENCE OF LIFE
  180  IMPRISONMENT OR DEATH.—In each case in which the court imposes a
  181  sentence of life imprisonment without the possibility of parole
  182  or death, the court must, considering the records of the trial
  183  and the sentencing proceedings, enter a written order addressing
  184  the aggravating factors set forth in subsection (7) found to
  185  exist, the mitigating circumstances in subsection (8) reasonably
  186  established by the evidence, whether there are sufficient
  187  aggravating factors to warrant the death penalty, and whether
  188  the aggravating factors outweigh the mitigating circumstances
  189  reasonably established by the evidence. The court must include
  190  in its written order the reasons for not accepting the jury’s
  191  recommended sentence, if applicable. If the court does not issue
  192  its order requiring a sentence of death within 30 days after the
  193  rendition of the judgment and sentence, the court must impose a
  194  sentence of life imprisonment without the possibility of parole
  195  in accordance with s. 775.082.
  196         (6) REVIEW OF JUDGMENT AND SENTENCE.—The judgment of
  197  conviction and sentence of death shall be subject to automatic
  198  review by the Florida Supreme Court and disposition rendered
  199  within 2 years after the filing of a notice of appeal. Such
  200  review by the Florida Supreme Court must have priority over all
  201  other cases and must be heard in accordance with rules adopted
  202  by the Florida Supreme Court.
  203         (7) AGGRAVATING FACTORS.—Aggravating factors are limited to
  204  the following:
  205         (a) The capital felony was committed by a person who was
  206  previously convicted of a felony violation of s. 794.011, and
  207  was under a sentence of imprisonment or was placed on community
  208  control or on felony probation.
  209         (b) The defendant was previously convicted of another
  210  capital felony or of a felony involving the use or threat of
  211  violence.
  212         (c) The capital felony was committed by a person designated
  213  as a sexual predator pursuant to s. 775.21 or a person
  214  previously designated as a sexual predator who had the sexual
  215  predator designation removed.
  216         (d)The capital felony was committed by a sexual offender
  217  who is required to register pursuant to s. 943.0435 or a person
  218  previously required to register as a sexual offender who had
  219  such requirement removed.
  220         (e) The defendant knowingly created a great risk of death
  221  to one or more persons such that participation in the offense
  222  constituted reckless indifference or disregard for human life.
  223         (f) The defendant used a firearm or knowingly directed,
  224  advised, authorized, or assisted another to use a firearm to
  225  threaten, intimidate, assault, or injure a person in committing
  226  the offense or in furtherance of the offense.
  227         (g) The capital felony was committed for pecuniary gain.
  228         (h) The capital felony was especially heinous, atrocious,
  229  or cruel.
  230         (i)The victim of the capital felony was particularly
  231  vulnerable due to age or disability, or because the defendant
  232  was in a position of familial or custodial authority in relation
  233  to the victim.
  234         (j) The capital felony was committed by a person subject to
  235  an injunction issued pursuant to s. 741.30 or s. 784.046, or a
  236  foreign protection order accorded full faith and credit pursuant
  237  to s. 741.315, and was committed against the petitioner who
  238  obtained the injunction or protection order or any spouse,
  239  child, sibling, or parent of the petitioner.
  240         (k) The victim of the capital felony sustained serious
  241  bodily injury.
  242         (8) MITIGATING CIRCUMSTANCES.—Mitigating circumstances are
  243  the following:
  244         (a) The defendant has no significant history of prior
  245  criminal activity.
  246         (b) The capital felony was committed while the defendant
  247  was under the influence of extreme mental or emotional
  248  disturbance.
  249         (c) The defendant was an accomplice in the capital felony
  250  committed by another person and his or her participation was
  251  relatively minor.
  252         (d) The defendant acted under extreme duress or under the
  253  substantial domination of another person.
  254         (e) The capacity of the defendant to appreciate the
  255  criminality of his or her conduct or to conform his or her
  256  conduct to the requirements of law was substantially impaired.
  257         (f) The age of the defendant at the time of the crime.
  258         (g) The existence of any other factors in the defendant’s
  259  background that would mitigate against imposition of the death
  260  penalty.
  261         (9) VICTIM IMPACT EVIDENCE.—Once the prosecution has
  262  provided evidence of the existence of one or more aggravating
  263  factors as described in subsection (7), the prosecution may
  264  introduce, and subsequently argue, victim impact evidence to the
  265  jury. Such evidence must be designed to demonstrate the victim’s
  266  uniqueness as an individual human being and the physical and
  267  psychological harm to the victim. Characterizations and opinions
  268  about the crime, the defendant, and the appropriate sentence may
  269  not be permitted as a part of victim impact evidence.
  270         (10)CONSTITUTIONALITY.—Notwithstanding s. 775.082(2), s.
  271  775.15, or any other provision of law, a sentence of death must
  272  be imposed under this section notwithstanding existing case law
  273  that holds such a sentence to be unconstitutional under the
  274  United States Constitution or the State Constitution. In any
  275  case for which the Florida Supreme Court or the United States
  276  Supreme Court reviews a sentence of death imposed pursuant to
  277  this section, and in making such a review reconsiders the prior
  278  holdings in Buford v. State and Kennedy v. Louisiana, and
  279  determines a sentence of death remains unconstitutional, the
  280  court having jurisdiction over the person previously sentenced
  281  to death must cause such person to be brought before the court,
  282  and the court must sentence such person to life imprisonment
  283  without the possibility of parole as provided in s. 775.082(1).
  284         (11)APPLICABILITY.—This section applies to any capital
  285  felony under s. 794.011 that is committed on or after October 1,
  286  2023.
  287         Section 3. Subsection (9) of section 921.141, Florida
  288  Statutes, is amended to read:
  289         921.141 Sentence of death or life imprisonment for capital
  290  felonies; further proceedings to determine sentence.—
  291         (9) APPLICABILITY.—This section does not apply to a person
  292  convicted or adjudicated guilty of a capital sexual battery
  293  offense under s. 794.011 or a capital drug trafficking felony
  294  under s. 893.135.
  295         Section 4. This act shall take effect October 1, 2023.